57 present at the MMAP meeting where the disclosure took place; and (6) Florreyn Joyette Royals, a staff employee of MMAP. The Committee reviewed the applications for authorization to institute and renew the wiretap, the progress reports and affidavits submitted to Judge Hastings, and the orders signed by Judge Hastings in his capacity as supervising judge of the wiretap investigation. The Committee also reviewed the FBI materials from the investigation of the "leak", the testimony and investigative reports developed by the 1987 Investigating Committee, and materials submitted by Judge Hastings. Mayor Clark testified before the Subcommittee that on September 6, 1985, he attended the annual meeting of the MMAP at the Hyatt Regency Hotel in downtown Miami. Mayor Clark was receiving an award and Judge Hastings was the featured speaker. The mayor testified that at the conclusion of Judge Hastings' speech, the judge approached him, shook his hand, took him aside and said "Stay away from Kevin Gordon. He is hot. He is using your name in the Hialeah area," and then went out the door. Mayor Clark testified that he left the meeting soon thereafter, went back to his office and called Peter Ferguson, his campaign manager. He asked Mr. Ferguson to get in touch with Kevin "Waxy" Gordon and tell Mr. Gordon that the mayor wanted to see him that day at the Miami Outboard Club. He saw Mr. Gordon that day at the Miami Outboard Club and told him that Judge Hastings had said that Mr. Gordon was using the mayor's name in the Hialeah area. The Subcommittee also heard testimony that Judge Hastings could not have had such a conversation after the speech. Ms. Royals testified that Judge Hastings was staying at the hotel and that on the morning of the speech she had called his room when it was time for him to come down to speak. She met Judge Hastings at the elevator and guided him through the catering areas to an entrance to the meeting room that was immediately behind the dias. Judge Hastings asked Ms. Royals to have his car waiting for him and to make sure that he finished by 10:15 a.m. so that he I could be back in court by 10:30 a.m. Ms. Royals testified that she returned through the rear door, a little before 10:15 a.m., and tugged on the judge's coattail to let him know that it was time for him to finish. According to Ms. Royals, Judge Hastings could not have stepped off the dias to shake hands with any members of the audience because she was holding on to his coat. In addition, the FBI monitored a call from Mr. Ferguson to Mr. Gordon at 8:58 a.m. informing Mr. Gordon that Mayor Clark wanted to see him that day at the Miami Outboard Club. By all accounts, Judge Hastings could not have finished his speech in time for Mayor Clark to have called Mr. Ferguson before 9:00 a.m. The program was scheduled to begin at 8:30 a.m. The awards presentation was to begin at 8:55 a.m. and Judge Hastings' speech at 9:05 a.m. No one suggests that the program was running early. To the contrary, the program was in all likelihood behind schedule. Therefore, Judge Hastings could not have disclosed the confidential information to Mayor Clark at the time and in the manner that the mayor described in his testimony. The threshhold issue for the Comr.ttee was whether Judge Hastings did in fact make the alleged disclosure to Mayor Clark on 58 the morning of September 6, 1985. The Committee concludes that he did. Several factors led the Committee to this conclusion. First, Mayor Clark has repeatedly and consistently stated, both under oath and in conversation, that Judge Hastings disclosed the information. In a January 17, 1985 conversation, which was taped by Mr. Gordon without the mayor's knowledge, the mayor confirmed that Judge Hastings had given him the information. Mayor Clark subsequently told the FBI that Judge Hastings was the source of his information that Mr. Gordon was using the mayor's name in Hialeah, and Mayor Clark so testified at the grand jury, before the 1987 Investigating Committee, and before the Subcommittee. In addition, Mayor Clark passed a polygraph examination administered by the FBI on the question of whether Judge Hastings was the person who had warned him about Mr. Gordon. Second, Judge Hastings on several occasions prior to September 6, 1985, after reviewing wiretap progress reports, expressed concern to Special Agent Santini and Assistant United States Attorney Martinez that Mr. Gordon was going to get Mayor Clark in trouble. In his testimony before the 1987 Investigating Committee, Judge Hastings admitted to having made such statements. It is therefore undisputed that Judge Hastings was aware of Mayor Clark's potential implication in a corrupt zoning scheme. Third, although it is unlikely that Judge Hastings talked to Mayor Clark after Judge Hastings' speech, there is undisputed evidence that Judge Hastings saw the mayor before the program began. Monsignor Bryan Walsh, who attended the MMAP meeting on September 6, 1985, testified that he arrived at the meeting around 8:15 a.m. and spoke with Judge Hastings and Mayor Clark sometime shortly thereafter. According to the Monsignor, one of the two came up to him and the other joined them a few moments later. He did not remember whether Judge Hastings or Mayor Clark came up first, but he did remember that they did not arrive together and that they seemed to be greeting each other for the first time that morning in his presence. After a brief exchange, the three separated. The Monsignor did not specifically recall the details of their parting, and testified that the mayor and Judge Hastings could have parted together. Although Mayor Clark testified that he had no recollection of seeing Monsignor Walsh and Judge Hastings that morning before the program began, Judge Hastings in his testimony before the 1987 Investigating Committee confirmed that on the morning of September 6 he talked with Mayor Clark and Monsignor Walsh before the speech.81 Judge Hastings had the opportunity to make the disclosure to Mayor Clark well before the speech began. Although a disclosure before the speech is inconsistent with some of the details of Mayor Clark's testimony, the Committee believes that Mayor Clark accurately remembered the actual disclosure. He was not inter 81 According to Judge Hastings, he left the two others and went to get the continental breakfast which was being provided for the conferees. Ms. Royals testified that she called Judge Hastings in his room a few minutes after 9:00 a.m. and met him at the elevator soon thereafter. Her testimony is consistent with that of Judge Hastings and Monsignor Walsh concerning a prech meeting, if Judge Hastings returned to his room after getting the continental breakfast the beginning of the meeting. 59 viewed about the details surrounding the disclosure until late February 1986, almost six months after the event.82 Fourth, Mayor Clark made arrangements to see Kevin "Waxy" Gordon on the same day that he attended the MMAP meeting. Mr. Ferguson called Mr. Gordon and told him that the mayor wanted to see him at the Miami Outboard Club at 11:30 a.m. In subsequent conversations monitored by the FBI that morning, Mr. Gordon told two different people that the mayor wanted to see him that day. One of them was the confidential informant, Mr. Rivero, and it was agreed that Mr. Rivero would also come to the Miami Outboard Club that morning. When Mr. Rivero arrived at 11:45 a.m., the mayor and Mr. Gordon were already talking. Mr. Gordon later reported, in monitored telephone conversations and to Mr. Rivero, that the mayor had told him that Judge Hastings had told Mayor Clark, that Mr. Gordon was involved in some deal in Hialeah. Within a few hours of seeing Judge Hastings, Mayor Clark had conveyed to Mr. Gordon information he had learned from Judge Hastings. Fifth, Mr. Gordon immediately acted on the information he received from Mayor Clark. He conferred with friends about where the judge could have learned what Mr. Gordon was doing. He became suspicious of Gino, the undercover FBI agent who was posing as a Houston-based entrepreneur interested in setting up an amusement center. Mr. Gordon began his own investigation into Gino's background. Judge Hastings testified before the 1987 Investigating Committee that he had not disclosed any confidential information to Mayor Clark. His counsel suggested that perhaps Mayor Clark had learned of the investigation from an alternative source in the FBI. The Committee rejects that contention for two reasons. First, there is no evidence of an alternative source. Mayor Clark testified that he had friends in the FBI, however, there is no evidence that he received any information from those persons.83 Second, the timing of Mayor Clark's statement to Mr. Gordon and Mr. Gordon's subsequent actions coincided exactly with the day on which Mayor Clark saw Judge Hastings. By the testimony of both the mayor and Judge Hastings, the two of them rarely saw each other, even at public functions. Therefore, if Judge Hastings was not the source of the information, the timing would have had to have been the result either of a coincidence or of a sophisticated plan on the part of Mayor Clark to protect an alternative source. The Committee rejects both of those possibilities as unfounded. The evidence before the Committee did not establish any obvious motive for Judge Hastings to warn Mayor Clark. Regardless of 82 Some of the details of Mayor Clark's testimony are consistent with a disclosure before the meeting, others are not: (a) a disclosure before the speech cannot be reconciled with Judge Hastings stepping off the podium and approaching Mayor Clark; (b) if Judge Hastings and Mayor Clark talked after leaving Monsignor Walsh, the disclosure could have been made as they were shaking hands in parting; (c) the statement that there was no conversation before or after the disclosure is inconsistent with the disclosure being made after they had conversed with each other and with Monsignor Walsh; and (d) Mayor Clark's statement that he immediately went to his office and called Mr. Ferguson is inconsistent with a disclosure before the meeting because it is unlikely that Mayor Clark could have left the meeting, gone to his office, and returned to the meeting in time to receive his award at 8:55 a.m. or sometime shortly thereafter; obviously he could have left the meeting and called Ferguson from a telephone at the hotel. 83 See Statement of Facts a 60 Judge Hastings' motive, however, the Committee concludes that the judge knew that the information he disclosed was confidential and very sensitive. Indeed, in answer to a question about the Romano order at his criminal trial, Judge Hastings commented on the "super-sensitivity" of Title III wiretap information: But if it had been a sensitive order, or let me give you an 84 Finally the Committee concludes that Judge Hastings should have known that to reveal the name of a target of an undercover investigation to an acquaintance of the target could compromise that investigation and endanger the lives of law enforcement officers. The Committee recognizes Judge Hastings did not mention the wiretap as such, may have disclosed the information spontaneously, and perhaps lacked a corrupt motive. Nonetheless he intentionally made the disclosure, thereby violating his own sealing order and compromising important undercover investigations. Judge Hastings' conduct warrants impeachment. Article XVII Article XVII charges that through a corrupt relationship with William Borders, repeated false testimony under oath at his criminal trial, fabrication of false documents submitted as evidence at his criminal trial, and improper disclosure of confidential information acquired as supervisory judge of a lawful wiretap, Judge Hastings undermined confidence in the integrity and impartiality of the federal judiciary and betrayed the public trust, thereby bringing disrepute on the federal courts and the administration of justice in the federal courts. The events described in Articles I through XVI reveal a pattern of misconduct, spanning five years, that is incompatible with the proper function and purpose of the federal judiciary. Judge Hastings was sworn in as a federal judge on October 22, 1979 and he was assigned the Romano case less than a week later. By the end of March 1981, less than a year and a half after Judge Hastings became a federal judge, William Dredge was making inquiries at the behest of William Borders to find out if the Romano brothers were likely candidates from whom to solicit a bribe. The bribery scheme played out over the course of six months in 1981. Judge Hastings was tried in January and February of 1983. Articles II through XV allege that during the course of that trial Judge Hastings lied under oath about 14 substantive matters. In addition at some point between October 9, 1981 and December 1982 he prepared false documents which he then submitted as evidence at his criminal trial. Finally, in September of 1985, while the subject of an inquiry by the Eleventh Circuit Investigating Committee concerning the brib 84 U.S. v. Hastings, supra at p. 1976. 61 ery conspiracy, perjury, and submission of fabricated evidence, Judge Hastings improperly disclosed confidential information about the target of a wiretap investigation to an acquaintance of the target. His disclosure terminated two undercover investigations and significantly limited a third. Such conduct seriously undermines public confidence and brings the federal court system into disrepute. The Judicial Branch is an essential institution of our Government. In order to perform its critical functions, it relies in large part upon the trust and confidence of the public. Conduct which substantially undermines that confidence threatens the functioning of the Judicial Branch, which in turn is grounds for impeachment. VII. DOUBLE JEOPARDY There is no constitutional or legal barrier to the impeachment of Judge Hastings for his participation in the bribery conspiracy. Judge Hastings' acquittal by a jury does not bar the House of Representatives from exercising its constitutional authority to adopt articles of impeachment. Indeed, the House of Representatives has a duty to insure the impartiality and integrity of the federal judiciary and the fair administration of justice. Neither the constitutional principle of double jeopardy nor the legal doctrines of res judicata or collateral estoppel bar the House from acting on the entire record of Judge Hastings' misconduct. A. THE CONSTITUTION PROVIDES TWO SEPARATE AND COMPLEMENTARY PROCESSES: IMPEACHMENT AND INDICTMENT The express language of the Constitution provides two separate and complementary processes, impeachment and indictment. Article I, Section 2, cl. 7, known as the "impeachment judgment clause," evinces the Framers' intention that a federal official accused of serious misconduct is subject to both criminal prosecution and impeachment for the same offense. That clause provides: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any office of Honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." The Framers designed the impeachment judgment clause "to make clear that criminal prosecutions subsequent to removal from office would not constitute double jeopardy of the sort explicitly prohibited by the Fifth Amendment." 85 That clause does more than specify a time sequence. It refers to the criminal process as a distinct proceeding to which an impeached official shall also be liable and reinforces the proposition that impeachment is separate and distinct from a criminal prosecution. For this reason, Judge Hastings' impeachment is wholly independent of his criminal trial and acquittal. Moreover, there are sound justifications for subjecting Judge Hastings and all federal officers to two independent types of scrutiny. 5 L. Tribe, American Constitutional Law 223 (1978). |